FEDERAL COURT OF AUSTRALIA

EUQ17 v Minister for Home Affairs [2018] FCA 1645

ORDERS

THE COURT ORDERS THAT:

1.    The appellant have leave to rely upon a new ground of appeal numbered 1A in an amended notice of appeal dated 20 September 2018 and there be leave to file such amended notice of appeal.

2.    The appeal is allowed.

3.    The interlocutory application for summary judgment dated 20 September 2018 is dismissed.

4.    The orders made by the Federal Circuit Court on 9 March 2018 be set aside.

THE COURT DECLARES THAT:

1.    The purported appointment of a port as a proclaimed port, an area of waters within the Territory of Ashmore and Cartier Islands, by notice published in the Commonwealth Gazette No GN 3 on 23 January 2002 is invalid.

2.    The appellant is not an 'unauthorised maritime arrival' within the meaning of s 5AA of the Migration Act 1958 (Cth) (Act).

3.    The appellant has not been notified pursuant to s 66 of the Act of the decision of a delegate of the Minister for Immigration and Border Protection dated 8 February 2017.

THE COURT ORDERS THAT:

4.    A writ of certiorari issue directed to the second respondent, quashing the decision of the second respondent made on 13 October 2017.

5.    The first respondent pay the appellant's costs of and incidental to the amended appeal as assessed if not agreed and the parties otherwise bear their own costs both in relation to the proceedings in the Federal Circuit Court of Australia and on appeal to this Court.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BANKS-SMITH J:

1    This is an appeal from the decision of the Federal Circuit Court dismissing the appellant's application for judicial review of the decision of the Immigration Assessment Authority (Authority) to affirm the Minister's delegate's decision to refuse to grant the appellant a Safe Haven Enterprise Visa (SHEV): EUQ17 v Minister for Immigration and Border Protection [2018] FCCA 696.

2    Although the appellant instituted the appeal in March 2018, in September 2018 he filed an application for leave to amend his grounds of appeal and for summary judgment.

3    The catalyst for his application was the decision of 6 August 2018 in DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178 (Perram, Wigney & Lee JJ), in which the Full Court declared that the area of waters within the Territory of Ashmore and Cartier Islands was not a proclaimed port for the purposes of the Migration Act 1958 (Cth) (Act). The relevance of that declaration is that the appellant in DBB16 was not a 'fast track applicant' to whom the abbreviated review process of Pt 7AA of the Act applies, and a review of the delegate's decision to reject his visa application should have proceeded under Pt 7 of the Act as a full merits review. The Full Court accordingly quashed the decision of the Authority.

4    The hearing of the appeal in this matter was originally scheduled for 7 August 2018. In the circumstances it was adjourned so that the parties could consider the relevance of DBB16.

5    At the return date for the appellant's summary judgment application, the Minister opposed the application for summary judgment but neither consented to nor opposed the appeal being heard at that time. The appellant, who was represented by counsel, was also willing to proceed to a hearing of the appeal.

6    In the circumstances, I heard the appeal and made orders allowing the appeal on the basis that the relevant facts in this matter are indistinguishable from those in DBB16 and there was no basis upon which I considered the Full Court was wrong. I indicated I would publish my reasons after the Full Court's reasons in DBB16 were published. Those reasons were published on 19 October 2018. Accordingly, I now publish my reasons.

7    I note that the matters raised by DBB16 and the subject of the amended notice of appeal were not matters raised by the appellant in this matter before the Federal Circuit Court.

Background

8    The appellant is a citizen of Myanmar.

9    It is accepted by the Minister that on 14 August 2012 the appellant arrived in Australia by boat via an area of water in the area surrounding the Ashmore and Cartier Island Territory (Territory). He was intercepted by the Royal Australian Navy on 14 August 2012 and taken to Darwin by 17 August 2012.

10    The appellant was processed in Darwin as an unauthorised maritime arrival.

11    In November 2015 the appellant applied for a SHEV. A delegate of the Minister refused the application in February 2017.

12    As the appellant was processed as an unauthorised maritime arrival he was considered a 'fast track applicant' to whom the review processes under Pt 7AA of the Act applied. Accordingly, the appellant was referred to the Authority for review of the delegate's decision.

13    In October 2017 the Authority affirmed the delegate's decision to refuse the grant of the SHEV, and the appellant sought judicial review in the Federal Circuit Court.

14    On 9 March 2018 the primary judge dismissed the application for judicial review. The appellant then appealed to this Court.

The appeal to this Court

15    By his interlocutory application, the appellant sought and was granted leave to rely on an amended ground 1A as follows:

The learned Federal Circuit Court Judge erred by not finding that the Second Respondent's powers under Part 7AA of the Migration Act 1958 were never engaged, whereas the learned Judge should have found that the Appellant did not 'enter Australia by sea' at an 'excised offshore place', was therefore not an 'unauthorised maritime arrival', and therefore not a 'fast track applicant' as defined by subsection 5AA(1)(a) of the Migration Act 1958, because, by being brought within the Ashmore Reef Lagoon, he was not also brought within a validly-proclaimed 'port' for the purposes of subsection 5(5)(a) of the Migration Act 1958, and therefore had not entered the 'migration zone' at the 'excised offshore place' of the Territory of the Ashmore & Cartier Islands, but in fact had first 'entered Australia by sea' at Darwin.

16    This was the only ground pursued by the appellant.

17    It is not necessary to set out the detailed and considered reasons in DBB16. For the purposes of this appeal, the reasons can be summarised as follows:

(a)    jurisdiction on the Authority to review the delegate's decision is conferred by s 473DB(1) of the Act, which requires it to review a fast track reviewable decision referred to it under s 473CA: all fast track reviewable decisions are automatically subject to review;

(b)    a 'fast track reviewable decision' is defined in s 473BB relevantly as a 'fast track decision in relation to a fast track applicant';

(c)    a 'fast track applicant' is defined in s 5 to mean:

(a)    a person:

(i)    who is an unauthorised maritime arrival and who entered Australia on or after 13 August 2012, but before 1 January 2014, and who has not been taken to a regional processing country; and

(ii)    to whom the Minister has given a written notice under subsection 46A(2) determining that subsection 46A(1) does not apply to an application by the person for a protection visa; and

(iii)    who has made a valid application for a protection visa in accordance with the determination; or

(b)    a person who is, or who is included in a class of persons who are, specified by legislative instrument made under paragraph (1AA)(b).

(d)    the live issue was whether the appellant DBB16 was an 'unauthorised maritime arrival' under s 5(a)(i);

(e)    that term is defined in s 5AA(1), and taking into account the appellant DBB16 arrived before the s 5AA commencement date of 1 June 2013, the relevant part of the definition provides that the person is an 'unauthorised maritime arrival' if they 'entered Australia by sea at an excised offshore place at any time after the excision time for that place';

(f)    the term 'excised offshore place' is defined in s 5 to include, relevantly, the Territory;

(g)    the excision time for the Territory is defined in s 5 to be 2.00 pm on 8 September 2001;

(h)    the appellant DBB16 was present at the Western Lagoon of Ashmore Reef within the Territory after that time, but to fall within the definition he must also have 'entered Australia by sea' there;

(i)    that expression is also defined: relevantly, in order to have 'entered Australia by sea' at the Territory it was necessary for him to have entered the 'migration zone';

(j)    by the definition of 'migration zone' in s 5, an area of sea that lay within the Territory would not be part of the migration zone unless the area were also a 'port', being a 'proclaimed port';

(k)    the appellant DBB16 did not step foot on land at Ashmore Reef and so the Western Lagoon had to have been proclaimed a 'port' for him to have entered the migration zone at Ashmore Reef;

(l)    the issue with respect to purported entry to the migration zone via the Western Lagoon was exposed in Sadiqi v Commonwealth of Australia (No 2) [2009] FCA 1117; (2009) 181 FCR 1 (McKerracher J), where the visa applicant had arrived in 2001 and at a time when there had been no purported proclamation of a port in the Territory;

(m)    although the Minister then purported to proclaim the Western Lagoon to be a port on 23 January 2002, the instrument doing so was invalid;

(n)    this follows from an examination of the statutory context, judicial consideration of the word 'port' and the ordinary meaning of the word 'port';

(o)    'port' is relevantly defined by s 5(5) to be a 'proclaimed port' but is also used in a non-prescribed sense in the Act;

(p)    whilst the word 'port' may have a variety of meanings, in context a fundamental feature of a 'port' that can be appointed as a 'proclaimed port' is that it must be reasonably adapted to the process of immigration clearance;

(q)    there is no infrastructure at the Western Lagoon of the Territory which would permit immigration clearance to occur: nor could a person leave the 'port' due to environmental regulation of the Ashmore Reef;

(r)    therefore, as a matter of statutory construction, the Western Lagoon area of Ashmore Reef is not a 'port' as that term is used in s 5(5) of the Act;

(s)    resort to dictionaries revealed only that 'port' may have many meanings, none of which match the Western Lagoon at Ashmore Reef;

(t)    nor did an examination of the legislative history of the extension of the Act to the Territory in 1997 indicate that a 'port' under the Act could include the Western Lagoon - the extension was concerned with border patrol, rather than effecting any change to the meaning of the word 'port';

(u)    therefore, the Minister had no power to appoint the Western Lagoon to be a proclaimed port and the instrument that purported to do so was invalid;

(v)    it followed that the Authority had no jurisdiction to review the delegate's decision.

18    The appellant submitted that there were no factual grounds that distinguished the circumstances of this case from those of the appellant considered in DBB16. The Minister also submitted that was so. The Minister consented to the appellant filing an amended notice of appeal. The Minister consented to the appellant raising the fresh ground on appeal that had not been raised before the Federal Circuit Court. Both counsel for the appellant and the Minister submitted that in any event I was bound by the declaration made in DBB16. In short, counsel for the Minister was in effect resigned to the fact the appeal should be allowed in this case (without conceding it) but informed the Court that the Minister's view is that DBB16 was wrongly decided and that the Minister intended to consider an application for special leave to appeal to the High Court.

19    I have considered the Minister's instructions as to the factual scenario (the appellant entered Australia by sea to waters within the Territory) and have taken into account the timing of the appellant's arrival to waters within the Territory (after 13 August 2012 and before 1 June 2013). I am satisfied that there are no relevant facts that distinguish the basis upon which the argument proceeded in DBB16 from those that concern the appellant. I have considered carefully the reasons in DBB16. I would only depart from the decision of the Full Court if I were convinced that it was plainly wrong. That is not the case. This is so regardless of the concessions of the parties that I am bound by the declaration. The process of statutory construction was elucidated thoroughly and the factual foundation clearly exposed.

20    Accordingly, the appeal has been allowed and orders were made to that effect on 21 September 2018.

21    I acknowledge the assistance of pro bono counsel for the appellant, Mr Crowley.

Associate:    

Dated:    1 November 2018